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Pursuant to dependant support legislation, courts have significant jurisdiction to provide support for those who qualify as dependants, and who have not been adequately provided for by the deceased. The remedies available to a dependant are broad, and the court has the jurisdiction to, essentially, rewrite the will so as to make adequate provision for the dependant.

The recent case of Soule v. Johansen Estate, 2011 ABQB 403 (CanLII) is a good illustration of such a rewriting of a will. There, the deceased died leaving a will that gave all of her estate, approximately $116,000, to the SPCA in Calgary, Alberta. The deceased intentionally disinherited her adult son. The son brought a proceeding against his mother’s estate, claiming that he was a dependant of the deceased and that he was not adequately provided for by the deceased.

In making its decision, the court referred to the common law recognition of a testator’s right to choose how to dispose of his or her property by will. However, the common law is changed by dependant relief legislation that seeks to balance testamentary autonomy with legal and moral obligations owed to dependant individuals in need.   Under the legislation, a form of which is in effect across the country, a testator has a duty to make adequate provision for the proper maintenance and support of a surviving spouse and children. (In Ontario, the definition of “dependant” includes an even broader group.) If the testator fails to discharge this duty, the court may order provision from the estate that is “adequate, just and equitable”. Testamentary autonomy must yield, to the extent necessary, to provide such support to dependants.

In Soule, the court found that the son was a “dependant” under the legislation because he was unable by reason of mental or physical disability to earn a livelihood. (Note that the Ontario legislation does not contain the same definition of “dependant”.)

In the end, the court awarded $10,000 to the SPCA, and the remainder of the estate to the son.

Thank you for reading,

Paul E. Trudelle - Click here for more information on Paul Trudelle. 

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Yesterday’s blog considered the fact that a common law spouse has no beneficial entitlement to his or her deceased spouse's estate on an intestacy.  There are, however, remedies available to the disappointed spouse. 

The first of these is a claim for dependant support found in Part V of the Succession Law Reform Act, whereby a common law spouse (or any other “dependant” of the deceased)  can ask for support where no adequate provision has been made for the dependant by the deceased.  

The Court has broad discretion to grant relief that, according to section 62(3) of the Act, can take a variety of forms, including the transfer, use or occupation of specified property in satisfaction of the dependant’s need for support.  

In many situations involving long-term common law relationships, there may also be an argument for equitable (as opposed to legal) ownership of property by the surviving common law spouse. These rights will be founded on the principles of unjust enrichment and include, for example, resulting or constructive trust, and proprietary estoppel.

The Supreme Court of Canada has recently considered two cases that provide guidance on unjust enrichment in the context of common law relationships. The Court released one decision in the matters of Kerr v. Baranow, and Vanasse v. Seguin, which I will be discussing in the next couple of blogs.    

Sharon Davis - Click here for more information on Sharon Davis. 

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Can a deceased person, immediately before his or her death, be found to have been in a common law spousal relationship with two persons, each of whom could assert a claim for support as a dependant?  This was the interesting question recently considered on a motion for interim support under Ontario's Succession Law Reform Act ("SLRA").

In Blair v. Cooke, the Applicant commenced an Application against the Estate seeking dependant support, and subsequently brought a motion seeking interim support from the estate.   In support of her application, the Applicant filed an extensive affidavit describing the history of her relationship with the Deceased and argued that she is a dependant spouse of the Deceased, thus, entitled to support under the provisions of the SLRA.  The court was also provided with numerous affidavits of friends and acquaintances confirming the Applicant’s 11-year relationship with the Deceased.

The Respondent is the estate trustee of the estate for the Deceased, and also argues that she is the Deceased’s common law spouse.  It is important to clarify that the Respondent does not make a claim for dependant support, but rather opposes the Applicant’s application.  In doing so, the Respondent filed her own affidavit and the affidavit of friends and acquaintances, which would corroborate that she was the Deceased’s common law spouse.  The Respondent argued the court should not make any finding of entitlement to support for the Applicant, because doing so would preclude her from claiming support (if she decided to make a claim at a later date) or claiming that she was in fact the “spouse” of the deceased. 

In considering whether or not a person could have two spouses for the purpose of making a dependant support claim, the court considered section 57 of the SLRA, more particularly the following definitions:

1.      “Dependent” can be a  “spouse of the deceased...to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death...”. 

2.      “Spousal” is further defined under the SLRA as “either of two persons who...are not married to each other and have co-habited...continuously for a period of not less than three years”; and

3.       “Co-habit” is defined to mean living together “in a conjugal relationship”.

The “twist” that I found interesting in this case, was that the court found that there was enough evidence to conclude that the deceased may have co-habited with two different women, in different homes.  The court stated that they did not have to determine that one party was a spouse and the other was not for purposes of awarding interim support; in fact both women could qualify.  The Applicant was awarded interim support.

Rick Bickhram - Click here for more information on Rick Bickhram.

 

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There is a tension in the case law between respecting the rights of testators to freely dispose of their estates upon death, and ensuring that a testator’s dependants are provided for in an adequate manner. Past blogs and podcasts on our website have explored this tension. 

In a recent decision out of New Brunswick, Johnson v. Johnson Estate, the court held that a testator had failed to meet his high moral obligation towards his wife of 45 years. Prior to his death, the testator had executed a Will in which he left his entire estate to his eldest son, subject to a life interest in the marital home in favour of his wife for as long as she chose to reside there. If the wife left the marital home, it would be sold and she would be entitled to half of the net proceeds. Given the little provision made for her, the wife commenced claims pursuant to New Brunswick’s Marital Property Act and the Provision for Dependants Act. 

The Court ultimately awarded the wife the marital home, along with its contents and four vehicles, and certain sums of money from various RRSPs and bank accounts. The Court found that the testator’s distribution of his estate further to his Will did not reflect the very high moral obligation that society would expect of a husband towards his dependant wife of 45 years. In the Court’s opinion, society would have expected the testator to leave the bulk (if not all) of his estate to his spouse. In this case, the Court ruled that testamentary freedom had to yield to the interests of a dependant and what is adequate provision for their support. 

Thanks for reading,

Bianca La Neve

Bianca V. La Neve - Click here for more information on Bianca La Neve.

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My colleague Natalia Angelini blogged on February 18 of this year about the increasing possibility that independent, adult children may be entitled to dependant support.

A 2009 Ontario Bar Association paper by Susan Woodley concluded that moral obligations of deceased parents in Ontario may require them to provide proper and adequate support to their children, spouse and dependants.

While the legislation in British Columbia clearly distinguishes any case from that province, a consideration of a recent case on point illustrates the roots of this evolving trend. 

In Sikora v. Sikora Estate 2009 BCSC 195, two of four adult sons of the testator brought an action under B.C.'s Wills Variation Act.  The Deceased had one child by his first marriage, three children with a subsequent common-law spouse, and at his death he was married to the defendant, San Meei Sikora. The Deceased’s residue to be divided amongst three sons equalled just over $11,500.

The two plaintiff brothers maintained contact with their father despite a difficult childhood. Each plaintiff provided evidence of respective incomes of about $90,000 and $35,000 and described their relationships with their father whom they assisted in his business and investment properties over the years. The Deceased’s wife’s responses created some credibility problems for her.

Justice Cullen reviewed the case law from the Supreme Court, Tataryn v. Tataryn Estate and a B.C. case, Clucas v. Clucas Estate (1999), 25 ETR (2d) 175 (BCSC) that summarizes the principles of the Wills Variation Act.

In Sikora, the Deceased’s wife accumulated her own assets while the Deceased did not. The plaintiffs showed that despite their independence their father had a moral obligation towards them.  The residue of the Deceased’s estate diminished in a manner that favoured his surviving wife and his moral obligation to his spouse was less firmly established than in other cases.

The Deceased used his money to purchase the matrimonial home, allowing the defendant to invest her money and increase her own assets. The plaintiffs succeeded and were therefore registered as tenants in common on a property with a life interest to the defendant.

Thank you for reading this week.  Enjoy your weekend.

Jonathan

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 A recent Ontario decision, MacDougall v. MacDougall Estate [2008] O.J. No. 2930 (S.J.C.), dealt with the issue of adequate provision for proper support under Part V of the Succession Law Reform Act (“SLRA”). 

The deceased died in 2004.  His widow (his wife from a second marriage) commenced an application for support from the deceased’s estate.   She claimed that the deceased had failed to make adequate provision for her.  The deceased had left her over $1 million in assets, which represented a significant portion of his assets.  The balance of the deceased’s estate was left to his children from his first marriage, and his grandchildren and great grandchildren.  The court found that the deceased had given careful consideration to the disposition of his estate and the needs of his widow. 

Although the widow qualified as a dependant at the time of the deceased’s death for the purposes of the SLRA, the court ultimately held that she was not entitled to support.  The widow had not met the burden of satisfying the court that the deceased had failed to make adequate provision for her.  Her current assets invested conservatively would generate $45,000.00 per annum net of tax.  The court found that the widow’s claim for support was driven not by need, but by her wish to live the lifestyle she had enjoyed with the deceased prior to 1998 when the deceased became ill. 

Have a great day!

Bianca La Neve

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Today’s blog is the third in my series this week on cases in the post Cummings v. Cummings era.

Today’s case is Simpson v. Leardi, [2005] O.J. No. 4282 (Ont. S.C.J.).  

In Simpson, the deceased had left a substantial estate. The plaintiff had brought an Application pursuant to the Succession Law Reform Act seeking support in the amount of $3,750 per month. The plaintiff was already receiving $1,000 per month pursuant to the deceased’s Will, leaving an alleged deficiency of $2,750 per month. The Court ordered that the Application be converted to an action and made an order awarding the plaintiff $2,750 a month in interim support.

The parties were subsequently in agreement that the plaintiff’s personal financial circumstances had improved since the interim order. The estate of the deceased was worth $10 million and the plaintiff’s assets were worth approximately $3 million.

The defendants, the estate trustees of the estate of the deceased, then brought a motion seeking the termination of the interim order for the support of the plaintiff. 

The plaintiff cited Cummings as support for her position that when the moral duty of the deceased to her is taken into account, the plaintiff should receive her fair share of the deceased’s wealth. The plaintiff conceded that based on a “needs based” analysis, she would not likely obtain a support order. The plaintiff contended, however, that the interim order should be maintained.

The Judge terminated the interim support, declining to accept the plaintiff’s argument that Cummings allows a court to take into account the respective wealth of the parties and reapportion that wealth in a “fair” manner. 

The judge noted that it was important that after the parties’ positions are put forward at trial, a judge may well determine that the plaintiff is entitled to more support than the $1,000 stipulated in the deceased’s Will. The plaintiff had not established, however, at the time of the motion, a continued need for interim support. 

Have a good weekend. Craig

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READ THE TRANSCRIBED PODCAST

During Hull on Estates Episode #42, Justin and Megan discussed the case of Godwin c. Bolcso [1993] O.P.J. No. 297 and Section 32 of the Family Law Act.

This case concerns the application by a 58-year-old mother for support from four adult children. The issues covered included the definitions of "reasonable care" and "support", and insight into when support will be ordered for parents.

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Part V of the Succession Law Reform Act (“SLRA”) provides the legislative framework for claims by a dependent of an estate. It sets out:

(i) who is a dependent;
(ii) what rights a dependant has in relation to the estate;
(iii) the circumstances the court should consider in determining the amount of support that should be awarded; and
(iv) the kinds of orders the court can make for the satisfaction of a dependent support claim.

Rule 60.11 of the Rules of Civil Procedure explicitly states that a party may pursue a contempt motion in order to pursue those who violate court orders other than for the payment of money.

Some have argued that, even in the face of the language of Rule 60.11, support orders involving the payment of money should be enforceable through a contempt proceeding.

In 2000, in its decision of Forrest v. Lacroix Estate (2000) 187 D.L.R. (4th) 280, (Ont. C.A.) the Court of Appeal set aside a contempt order made as a result of a failure to pay a SLRA dependent support award, affirming that Rule 60.11 does not permit contempt orders for the payment of money.

At the contempt proceeding in the Forrest case, the Judge attempted to reason around the language of Rule 60.11 regarding the payment of money in considering the contempt. The testator had named his son trustee and sole beneficiary of his estate, valued at $900,000. The testator died without making provisions for his common law wife of 19 years. The son dissipated the estate assets in the face of a specific order prohibiting dissipation, such that the value of the estate was reduced to $48,000 at trial. The son was ordered to pay the common law wife $300,000 under the SLRA. The wife moved for an order holding the son in contempt of court for failing to pay. The son was ordered committed to jail for nine months unless he purged contempt within 28 days by paying the common law wife. The contempt order was made as the Judge held that such an order was akin to orders enforcing family law support payments, and as it is in the public interest that those who choose to ignore court orders should be punished.

The Court of Appeal, however, after an extensive canvassing of the law, was unequivocal in finding that Rule 60.11 contempt orders cannot be used to enforce orders for payments of money, including the payment of SLRA dependant support awards or for payments under the Family Law Act.

The Court of Appeal’s decision in Forrest was followed by the Ontario Court of Appeal in its decision in Murano in 2002. In discussing the requirements for contempt motions under the Family Law Rules, the Court of Appeal adopted the decision in Forrest, writing:

“…the effect of rules 60.05 and 60.11(1)…is to remove the court’s inherent jurisdiction to use the contempt power to enforce an order for the payment of money in cases governed by the Rules…It was taken as a given that the plain language of 60.05 and 60.11(1) do not permit contempt proceedings under those rules to enforce orders for the payment of money…I find that the reasoning in Forrest v. Lacroix, is equally applicable to the Family Law Rules.”

While contempt motions may not be used to enforce the payment of SLRA dependent support awards, they may still be appropriate to address the failure of a party to transfer assets (other than the payment of money) as required or the failure to act pursuant to an Order in respect of assets (and/or liabilities) in proceedings involving the SLRA.

Have a great day, Craig.

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In Cummings v. Cummings, the Court of Appeal affirmed the decision made by the application judge at first instance.

In coming to this conclusion, the Court of Appeal was strongly influenced by the concepts set out in the decision of the Supreme Court of Canada in Tataryn v. Tataryn Estate ([1994] 2 S.C.R. 807 (S.C.C.)).

The decision in the Tataryn case held that moral considerations were applicable to a determination as to the amount of a dependant's support award in the context of the British Columbia statute (The Wills Variation Act, R.S.B.C. 1979, c. 435).

Until the Cummings v. Cummings decision, the approach to quantifying dependant's relief claims in Ontario was to essentially ignore the Tataryn moral considerations approach. This was as a result of the fact that the Tataryn decision was an appeal from the British Columbia Court of Appeal and was in respect to section 2(1) of the Wills Variation Act, which included substantially different wording than that of the SLRA. The Wills Variation Act assists dependants where there is a will which does not "in the Court's opinion, make adequate provision for the proper maintenance and support of the testator's wife, husband or children".

It is this language that has allowed the British Columbia Courts to approach the whole question of quantifying dependant's relief on a very different basis and on a moral conviction approach. The language in the Wills Variation Act is broadly drafted and essentially allows the Court to do what it thinks is adequate, just and equitable in the circumstances.

With the Cummings v. Cummings decision essentially embracing the decision of Tataryn, a very different approach must be considered in respect of quantifying dependant's relief claims in Ontario.

We hope this case gives you an idea of the application of the basics legal definitions and terms.

All the best, Suzana and Ian. --------

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As to the adequacy of support, section 62(1) of the Succession Law Reform Act provides as follows:

62. (1) Determination of amount - In determining the amount and duration, if any, of support, the Court shall consider all the circumstances of the application, including,

(a) the dependant's current assets and means;

(b) the assets and means that the dependant is likely to have in the future;

(c) the dependant's capacity to contribute to his or her own support;

(d) the dependant's age and physical and mental health;

(e) the dependant's needs, in determining which the Court shall regard to the dependant's accustomed standard of living;

(f) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(g) the proximity and duration of the dependant's relationship with the deceased;

(h) the contributions made by the dependant to the deceased's welfare, including indirect and non-financial contributions;

(i) the contributions made by the dependant to the acquisition, maintenance and improvement of the deceased's property or business;

(j) a contribution by the dependant to the realization of the deceased's career potential;

(k) whether the dependant has a legal obligation to provide support for another person;

(l) the circumstances of the deceased at the time of death;

(m) any agreement between the deceased and the dependant;

(n) any previous distribution or division of property made by the deceased in favour of the dependant by gift or agreement or under Court order;

(o) the claims that any other person may have as a dependant;

(p) if the dependant is a child,
(i) the child's aptitude for and reasonable prospects of obtaining an education, and
(ii) the child's need for a stable environment;

(q) if the dependant is a child of the age of sixteen years or more, whether the child has withdrawn from parental control;

(r) if the dependant is a spouse,

(i) a course of conduct by the spouse during the deceased's lifetime that is so unconscionable as to constitute an obvious and gross repudiation of the relationship,
 
(ii) the length of time the spouse cohabited,
 
(iii) the effect on the spouse's earning capacity or the responsibilities assumed during cohabitation,
                                                                                                                        
(iv) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(v) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(vi) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse had devoted the time spent in performing that service in remunerative employment and had contributed the earnings to the family's support,

(vii) the effect on the spouse's earnings and career development of the responsibility of caring for a child,

(viii) the desirability of the spouse remaining at home to care for a child; and

(s) any other legal right of the dependant to support, other than out of public money.

(2) Evidence - In addition to the evidence presented by the parties, the Court may direct other evidence to be given as the Court considers necessary or proper.

(3) Idem - The Court may accept such evidence as it considers proper of the deceased's reasons, so far as ascertainable, for making the dispositions in his or her will, or for not making adequate provision for a dependant, as the case may be, including any statement in writing signed by the deceased.

(4) Idem - In estimating the weight to be given to a statement referred to in subsection (3), the Court shall have regard to all the circumstances from which an inference can reasonably be drawn as to the accuracy of the statement.

Tomorrow we will begin to look at how these legislative terms are being applied by the Courts.

All the best, Suzana and Ian. --------

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In an effort to discuss claims against an estate that relate to dependant support and to claims of the surviving spouse, we thought it would be interesting to embark on a mini-series on the topic.

Family Law Act Claims

Subject to a contract to the contrary, section 6(1) of the Family Law Act provides for the right of the surviving spouse to make an equalization claim against the assets of the estate.

Since the 1970s, a general statutory proposition prevails that the value of "family property" should be split up equally when the marriage ends, regardless of which spouse holds to the property.

With the coming into force of the Family Law Reform Act, 1986 (R.S.O. 1980, c.152 (repealed and replaced by the Family Law Act 1986, S.O. 1986, c.4)), Ontario established a deferred community of property regime, which added a new dimension in relation to its impact upon surviving spouses and estates of deceased spouses and other persons who have an interest in their estates.

While the deferred community of property regime (the rest of the Provinces have similar legislation, for example: Alberta: Matrimonial Property Act, R.S.A. 1980, c.M-9, British Columbia: Family Relations Act, R.S.B.C., c. 121, Pt. 3 (Sections 43-55), Manitoba: Marital Property Act, R.S.M. 1987, c.M 45, Saskatchewan: Matrimonial Property Act, S.S. 1979, c. M-6.1) did not change the substantive law of succession, it had the effect of adding to or taking away property and rights to property previously thought to be those assets of a testator and surviving spouses.

The impact affected the rights of the estate of a deceased spouse and a surviving spouse, and had a serious impact upon the entitlement of other persons interested under estates of a deceased spouse.

Support of Dependants under Part V of the Ontario Succession Law Reform Act - Restriction on Testamentary Power

Since the early 1900s, legislators in the common law jurisdictions began to give to the court a discretionary power to order proper maintenance and support out of the assets of an estate in circumstances where the testatrix had failed to make adequate provision for the support of dependants. In Ontario, the Dependants' Relief Act, R.S.O. 1970, c.126 and the successor provisions of the Succession Law Reform Act, R.S.O. 1990, c.S.26, set out the statutory provisions whereby a testator's power to do what he or she wishes with his or her assets is restricted.

 In a future blog, we will continue to explore these important claims against an estate.

All the best, Suzana and Ian. --------